212
8.1.2 Federalism and the Food–Energy–Water Nexus
Within the USA, the federalist structure creates shared authority between the federal government and the states, resulting in a varied landscape of natural resource
regulation. While federal environmental and other laws may preempt or constrain
state and local regulations in some cases, but state and local (municipal) governments retain authority over many FEW resources through water resource allocation and land use decisions, resulting in a great variation of regulation of FEW
resources.
At the federal level, the National Environmental Policy Act (NEPA) provides
for consideration of significant environmental impacts of regulations and projects
that are created, funded, or permitted by federal government agencies. State analogs
to NEPA require a similar assessment of state-level laws and projects found likely to
have significant environmental impacts. At the municipal level, various local landuse laws provide a mechanism for protecting water resources, promoting food production, and governing impacts of energy infrastructure and production. These laws
often reflect local social and economic priorities as well as place-specific environmental sensitivities, but the resulting mosaic of regulations that are inconsistent from
state to state and municipality to municipality creates some unwanted effects, such as
hot spots for pollution or resource development.
The federal regulatory system rarely explicitly addresses the food–water–energy
nexus, despite extensive research showing strong interconnection among the three
sectors. Most decisions impacting water pollution, energy production, and
agriculture are made by specialized administrative agencies such as the
Environmental Protection Agency (EPA), the Federal Energy Regulatory
Commission (FERC), and the U.S. Department of Agriculture (USDA), and in some
cases the Food and Drug Administration (FDA). Agency actions are subject to
judicial review under limited circumstances, and such legal challenges form a
substantial body of precedent—that is, past court decisions that guide and constrain
courts in future cases—in the field of administrative, environmental, and natural
resource law.
Legal precedent grants federal agencies discretion to make their best expert judgment when they are acting within the scope of the authority granted by Congress.
Where conflicts arise between laws at different scales, agency rulings sometimes
seek to mitigate them. For example, after a 2004 case found that back-pumping
water into the Florida Everglades required a National Pollutant Elimination
Discharge System (NPDES) permit, the EPA issued a Water Transfer Rule in 2008.
This rule explicitly stated that discharge permits would not be required for transfers
of water from one navigable water body to another, and all navigable waters would
be treated as one, the “unitary waters” theory. This rule prevents disruption of water
law in western states, which manage water resources by extensive transfers of water
from one watershed to another, avoiding conflict between the NPDES system and
state water rights systems. However, it risks allowing lesser quality water to be
transferred to bodies of higher quality water.
B. Kinne and D. Magee
8.1.2 Federalism and the Food–Energy–Water Nexus
Within the USA, the federalist structure creates shared authority between the federal government and the states, resulting in a varied landscape of natural resource
regulation. While federal environmental and other laws may preempt or constrain
state and local regulations in some cases, but state and local (municipal) governments retain authority over many FEW resources through water resource allocation and land use decisions, resulting in a great variation of regulation of FEW
resources.
At the federal level, the National Environmental Policy Act (NEPA) provides
for consideration of significant environmental impacts of regulations and projects
that are created, funded, or permitted by federal government agencies. State analogs
to NEPA require a similar assessment of state-level laws and projects found likely to
have significant environmental impacts. At the municipal level, various local landuse laws provide a mechanism for protecting water resources, promoting food production, and governing impacts of energy infrastructure and production. These laws
often reflect local social and economic priorities as well as place-specific environmental sensitivities, but the resulting mosaic of regulations that are inconsistent from
state to state and municipality to municipality creates some unwanted effects, such as
hot spots for pollution or resource development.
The federal regulatory system rarely explicitly addresses the food–water–energy
nexus, despite extensive research showing strong interconnection among the three
sectors. Most decisions impacting water pollution, energy production, and
agriculture are made by specialized administrative agencies such as the
Environmental Protection Agency (EPA), the Federal Energy Regulatory
Commission (FERC), and the U.S. Department of Agriculture (USDA), and in some
cases the Food and Drug Administration (FDA). Agency actions are subject to
judicial review under limited circumstances, and such legal challenges form a
substantial body of precedent—that is, past court decisions that guide and constrain
courts in future cases—in the field of administrative, environmental, and natural
resource law.
Legal precedent grants federal agencies discretion to make their best expert judgment when they are acting within the scope of the authority granted by Congress.
Where conflicts arise between laws at different scales, agency rulings sometimes
seek to mitigate them. For example, after a 2004 case found that back-pumping
water into the Florida Everglades required a National Pollutant Elimination
Discharge System (NPDES) permit, the EPA issued a Water Transfer Rule in 2008.
This rule explicitly stated that discharge permits would not be required for transfers
of water from one navigable water body to another, and all navigable waters would
be treated as one, the “unitary waters” theory. This rule prevents disruption of water
law in western states, which manage water resources by extensive transfers of water
from one watershed to another, avoiding conflict between the NPDES system and
state water rights systems. However, it risks allowing lesser quality water to be
transferred to bodies of higher quality water.
B. Kinne and D. Magee